Sentinel Star Co. v. Edwards

• Decision Date: 09 July 1980
• Docket Number: No. 80-187,80-187
• Citation: 387 So.2d 367
• Parties: 6 Media L. Rep. 1603 SENTINEL STAR COMPANY, Petitioner, v. The Honorable Claude R. EDWARDS, Circuit Court Judge, etc., Respondent.
• Court: Florida District Court of Appeals

Page 367

387 So.2d 367

6 Media L. Rep. 1603

SENTINEL STAR COMPANY, Petitioner, v. The Honorable Claude R. EDWARDS, Circuit Court Judge, etc., Respondent.

No. 80-187.

District Court of Appeal of Florida, Fifth District.

July 9, 1980.

Rehearing Denied Sept. 4, 1980.

William G. Mateer and David L. Evans of Mateer, Harbert, Bechtel & Phalin, P.A., Orlando, for petitioner.

Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Daytona Beach, for respondent.

James A. Edwards and John H. Ward, Orlando, amicus curiae.

John L. Sewell of Gurney, Gurney & Handley, Orlando, for Florida Defense Lawyers Association, amicus curiae.

Charles E. Davis, Orlando, for Lenore C. Starling.

COBB, Judge.

The petitioner Sentinel Star Co., publisher of a daily newspaper, challenges, by way of Rule 9.100(d), Florida Rules of Appellate Procedure, the action of the trial court in closing a civil post-trial hearing concerning a juror interview.

The events leading up to the closure order were as follows: A wrongful death action was filed by the personal representative of the Estate of Robert Wayne Starling, a deceased minor, against the City of Kissimmee and its liability insurance carrier. At the conclusion of the trial, the jury returned a verdict in favor of the defendant city. The plaintiff filed a timely motion for new trial and a motion to interview jurors based on information received indirectly from one Robert S. Johnson.

At the hearing, attended by a news reporter of the petitioner, the affidavit of Johnson was filed by the plaintiff in support of the motion to interview. The affidavit quoted an alternate juror, one Viola Warwick, as having told Johnson during the progress of the trial that the plaintiff would lose because of the jury's apprehension that a verdict against the city would result in increased utility rates. ¹ The court ruled that the affidavit was untimely and declined to grant the motion. Plaintiff refiled the motion to interview, together with the Johnson affidavit, and the motion was set for hearing on January 21, 1980. Meanwhile, the Sentinel Star contacted all but one of the jurors in the case and conducted its own interviews as to the truth of Johnson's allegations.

At the second hearing on the plaintiff's motion for a new trial and motion to interview, the attorney and a reporter for the Sentinel Star were present. The trial court heard argument on the motions, and ordered that an interview of the alternate juror, Viola Warwick, and the affiant, Robert S. Johnson, would be conducted on February 15, 1980. The trial judge further stated that he probably would hear no further argument on the motion for new trial unless he determined that there was some jury impropriety.

Prior to the February hearing the defendants, City of Kissimmee and Travelers Insurance Co., took Johnson's deposition. The plaintiff's motion to depose Viola Warwick was denied by the court. There is no indication from the record before us that the press was excluded from the Johnson deposition, or that it has been sealed by the trial court. It is not shown from the record before us whether or not this deposition was transcribed.

On February 15, 1979, the trial court conducted an open hearing on the motion for new trial, which hearing commenced at approximately 9:00 A.M. Then, at approximately 10:15 A.M., the trial judge sua sponte announced that the courtroom would be closed to the press and the public for the hearing on the motion to interview the juror, Viola Warwick, which had been granted on January 21, 1980. There had been no advance notice that closure would be considered. There is conflict in the record before us as to whether or not a reporter for the petitioner was present at that time; if not, he arrived shortly thereafter. Apparently, no one voiced an objection to closure at the time of the court's announcement. ²

The reporter relayed the news of this development to newspaper headquarters in Orlando, which promptly dispatched an attorney. He obtained an audience with the trial judge during the noon recess, and urged that the proceeding be opened to the press and public. The petitioner's counsel argued the case of Sentinel Star Co. v. Booth, 372 So.2d 100 (Fla. 2d DCA 1979) in opposition to the closure. Judge Edwards read the case, heard argument by counsel, and denied the ore tenus motion to open the hearing after announcing his view that Booth was distinguishable.

At the conclusion of the hearing, the trial court opened the courtroom and made the following announcement:

Members of the media, the Court has ruled that there will be no interviewing of the jurors who found the verdict in this case. That the plaintiff's Motion for a New Trial is denied. That the Court Reporter's notes are sealed. That everybody who has been in here is directed not to discuss the case beyond the findings I have mentioned. This comment comes from the Court, which is the grounds at the beginning of a one liner, explanation to you at the end. The Courts are directed to be very reluctant to permit interviews of jurors and do so with great circumspection and care. The Court felt this required the exclusion of the public and media and prohibition of the participants of discussing the case further, in the interest of preserving sanctity of jurors deliberation.

Thank you. I don't think there is going to be any more hearings before me about this matter.

The petitioner seeks an order from this appellate court suspending operation of the restrictive orders issued by the trial court on February 15, 1980; an order directing the respondent trial judge to have the court reporter's record of the closed hearing transcribed and made available to the press; and a blanket injunction prohibiting the trial court from issuing further injunctive orders in the case without following procedures set forth in the Booth case.

The petitioner claims that the order of closure violated its fundamental first amendment right of access to a judicial proceeding. It contends that the press is entitled to notice and hearing before a trial court can restrict such access.

Lenore C. Starling, plaintiff below, has filed an amicus curiae brief. She argues that Rule 1.431(g), Florida Rules of Civil Procedure, permits the trial court to prescribe the place, manner, conditions and scope of a juror interview; that this provision related to 6th amendment rights to a fair trial and 7th amendment rights to a jury trial includes the authority to exclude the press from such an interview; that there is no constitutional provision nor Florida case law which authorizes access of the press to civil post-trial proceedings, nor requires notice and hearing for such exclusion; that the trial court's announcement in open court of the closure, coupled with the subsequent presentation of argument by counsel for the petitioner, complied with the requirements of State ex rel. Miami Herald Publishing Co. v. McIntosh, 340 So.2d 904 (Fla. 1977); and that it is impractical and, indeed, impossible to notify all interested news media whenever a hearing must be closed, which is authorized by Rule 1.431(g) and recognized by Rule 9.100(d), Florida Rules of Appellate Procedure. Starling notes that there are a number of designated exceptions to the right of the press of access to judicial proceedings, such as trade secrets, bastardy proceedings, adoption proceedings, and circumstances involving the potential for physical harm or embarrassment to witnesses. See State ex rel. Gore Newspaper Co. v. Tyson, 313 So.2d 777, 783 (Fla. 4th DCA 1975), overruled on procedural grounds in English v. McCrary, 348 So.2d 293 (Fla. 1977). In conclusion, Starling relies on the statement from McIntosh that a trial court has the power to restrict statements by lawyers, litigants, witnesses, jurors and court personnel, and maintains that nothing more is involved in the present appeal.

The respondent Judge Edwards primarily relies upon the recent United States Supreme Court case of Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979) (hereinafter referred to as Gannett ), and contends that it stands for the proposition that the media has no constitutional right of access to pre-trial or post-trial hearings, criminal or civil. In support of this proposition, respondent also relies on Miami Herald Publishing Co. v. State, 363 So.2d 603 (Fla. 4th DCA 1978).

The respondent concedes that Gannett did not directly pass on the question as to whether the first amendment guarantees the public the right of access to pre-trial (hence post-trial) proceedings, but notes that the concurring opinion of Justice Rehnquist therein cites several prior United States Supreme Court decisions as holding that there is no first amendment right of access of the public or press to judicial or other governmental proceedings. ³

The respondent also asserts that the press and the public are not entitled to formal notice and hearing prior to entry of an order closing court proceedings or court records or imposing a "gag" rule against appropriate court personnel, officers and attendants. He also relies on Rule 1.431(g), Florida Rules of Civil Procedure, as vesting the trial judge with discretion in regard to the closure of juror interviews. It is clear that the respondent draws no distinction between the interview of an alternate juror and the interview of regular jurors under the rule. Respondent also cites the case of Velsor v. Allstate Ins. Co., 329 So.2d 391 (Fla. 2d DCA 1976) for the proposition that public policy dictates that inquiry into the thought processes, motives or influences of jurors must be zealously guarded to prevent litigants or the public from invading the privacy of the jury room. The respondent also asserts that the "three-prong" test referred to in Booth is no longer required prior to entry of any restrictive order as a result of Gannett.

In addition, we have considered the briefs of...